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Justice Requires that Courts Exercise Their Inherent Power to Appoint Counsel in Civil Cases

[Author's Note: This is a shorter version of an open letter sent to all trial judges. I am sharing it with Wisconsin Lawyer readers because of the great importance of appointing counsel in civil cases.]

Dear Wisconsin Judges:

If each judge were asked what is his or her purpose on the bench, I know that she or he would answer that the primary mission, if not the sole mission, is to do justice. She or he would express agreement that this nation is founded on the principle of "Equal Justice Under Law." And, she or he would wholeheartedly agree with the words of our Founding Fathers in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal."

Despite the lip service that all of us pay to these high-sounding phrases, the unhappy truth is that justice is, very often, not done; that there is no equal protection under law; and that all people are not treated equally in our courts.

The law firm at which I am employed had occasion to represent a little family after most of the damage had been done. The family consisted of a mother and a daughter. The mother was in her mid-40s and suffering from cancer. The little girl was 8 years old. Both were sued in eviction by a management company. The mother and little girl could not afford a lawyer, so they were on their own, defenseless. The mother entered into an "eviction stipulation" whereby she agreed to leave their apartment – with no place to live but their van. This was in the middle of January.

For most of those winter days and nights, from January through mid-April, that little girl had only that van on the street to call home. The only heat she had was the van’s heater and some blankets. Imagine what it is like for a young girl to spend close to 90 winter nights in a motor vehicle on the street, not in a home. Imagine what it is like for a mother to realize that this is all she can do for her daughter. All of the prisoners in the Wisconsin penal system were warmer on those winter nights than was that little girl.

In critical civil cases, where legal rights affecting basic human needs are decided, it is imperative that judges appoint lawyers to represent poor people, especially when there is a lawyer on the other side. Judges have the power to appoint counsel in civil cases. It has been given to them by the Wisconsin Constitution. That power has long been recognized by the Wisconsin Supreme Court, in the Romasko, Lehman, Chiarkas, Piper and Joni B. cases. Yet, judges almost never use this power. In 2003, courts appointed attorneys in only 0.3 percent of civil cases.

I believe that courts are reluctant to do justice because justice costs the counties money. Yet the counties spend money on all manner of less important things, from fairgrounds to ATV trails to armor-plated Humvee riot-control jeeps. There seems to be money for these things, but not for justice.

Wisconsin courts have long had the power, granted them by our Constitution, to appoint counsel in civil cases. They have almost never employed that power. It is time that they began – for the sake of justice.